The importance of Art. 9 (3) Grundgesetz for the establishment of trade unions in Germany

Elaboration, 2010

9 Pages, Grade: 1,0



I Introduction

II The Vereinigungs- und Koalitionsfreiheit of Art. 9 (3) GG
A. The Wording of Art. 9 (3) GG
B. The History of Art. 9 (3) GG
C. Scope of Art. 9 (3) GG
1. Individual Rights of Art. 9 (3) GG
2. Collective Rights of Art. 9 (3) GG
3. The Tarifautonomie

III Conclusion

I Introduction

The modern German civil law is based on the idea of freedom of contract (Rüthers, 2003, p. 26). This implies the freedom of individuals to negotiate contracts without any interference of the government. This concept can only lead to fair and reasonable results if two equal parts are negotiating (Rüthers, 2003, p. 28). If one party has more or better alternatives than the other, the result is more likely to be unfair and inequitable (Blum, 2007, p. 9).

In the 18th century the Industrial Revolution started in Great Britain which had a great effect on manufacturing processes, for example in the textile industry (Pierce, 2005, p. 10). Steam power, electricity and new machines were invented. As a result people lost their jobs to machines. In times of a fast growing population and many unskilled work in factories, the power in negotiations between employers and employees shifted almost completely towards the employers (Rüthers, 2003, p. 11). It had to be recognized that employers and employees are not in an equal relationship (Gamillscheg, 1997, p. 3). This was also stated by Adam Smith over two hundred years ago: “They [the employers] can force the men into compliance with their terms” (cited in Gamillscheg, 1997, p. 4). Hence in labour relations we can observe an inequality of negotiation power. For the creation of an equal relationship with fair results for both sides there needs to be a counterbalance for the workers against the stronger position of the employers (Foster, 2002, p. 524). For gaining this power workers need to associate. Such associations of workers are called unions. The following definition of a union will help us to understand the nature and tasks of unions: A union is “an organisation which consists wholly or mainly of workers […] and whose principal purposes include the regulation of relations between workers […] and employers or employers’ associations.” (Trade Union and Labour Relations Act 1992). Trade unions are defined both by reference to their membership and their purposes. Since the Second World War trade unions play an important role in the conduct of industrial relations in Germany (Foster, 2002, p. 528). Approximately 57 % of the German companies have defined their terms of work in a collective agreement (Haucap, 2008, p. 62). Especially bigger companies like Volkswagen, Siemens and Ranstad have such collectively negotiated agreements (Keller, 2008, p. 241). The different unions in Germany are organised in the umbrella organisation Deutscher Gewerkschaftsbund (German Federation of Trade Unions).

II The Vereinigungs- und Koalitionsfreiheit of Art. 9 (3) GG

Art. 9 (3) GG deals with the Vereinigungs- und Koalitionsfreiheit, the freedom to found and join societies and associations. This matter is closely linked to the legal questions arising from collective agreements and strikes (Freckmann, 1999, p. 96). After presenting the wording of Art. 9 (3) GG, followed by a short overview concerning the history of Art. 9 (3) GG, these questions will be elaborated in more detail in this midterm paper.

A. The Wording of Art. 9 (3) GG

As the right to associate is of utmost importance for people and had been denied in the past, the right to form unions and the right of collective negotiations is guaranteed in the German Constitution by Art. 9 (3) GG since 1949:

Das Recht, zur Wahrung und Förderung der Arbeits- und Wirtschaftsbedingungen Vereinigungen zu bilden, ist für jedermann und für alle Berufe gewährleistet. Abreden, die dieses Recht einschränken oder zu behindern suchen, sind nichtig.

The official translation by the German parliament, the Deutscher Bundestag, is as followed:

The right to form associations to safeguard and improve working and economic conditions shall be guaranteed to every individual and to every occupation or profession. Agreements that restrict or seek to impair this right shall be null and void; measures directed to this end shall be unlawful. (Deutscher Bundestag 2010, p. 16)

B. The History of Art. 9 (3) GG

The history of Art. 9 (3) GG can be traced back to the Weimarer Reichsverfassung (WRV). The Weimarer Reichsverfassung was the first constitution in the history of the German nation which was based on the principle of sovereignty of the people (Caldwell, 1997, p. 1). It came into effect on 11th August 1919. In the Weimarer Reichsverfassung there was for the very first time a constitutional provision for the freedom of association and for the safeguarding and improvement of working and economic conditions (Foster, 2002, p. 523). In the 18th and 19th century strikes and the persuasion to strike were generally illegal and any breach was punishable by imprisonment. The new Art. 159 and 165 of the Weimarer Reichsverfassung were very similar to the current Art. 9 Abs. (3) GG. Therefore, the Bundesverfassungsgericht (Federal Constitutional Court), whose jurisdictions are binding for all constitutional organs of the Federation and the Länder just as for all courts und public authorities (§ 31 Abs. 1 BVerfGG, Code of the Federal Constitutional Court), stresses in its case law concerning the scope of Art. 9 Abs. (3) GG the importance of the historical development of this article [e.g. BVerfGE 4, 96; 18, 18] (Kannengießer, 2008, p. 325).


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The importance of Art. 9 (3) Grundgesetz for the establishment of trade unions in Germany
T.C. Yeditepe University Istanbul
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Felix Hadwiger (Author), 2010, The importance of Art. 9 (3) Grundgesetz for the establishment of trade unions in Germany, Munich, GRIN Verlag,


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